Summary of Recent Cases – Civil Procedure

The trial judge had not erred in implicitly accepting a witness’ evidence as truthful despite not clearly expressing his reasoning and consequent findings
Maynard v Wigan Metropolitan Borough Council (2011), CA, 21/12/11
A local authority appealed against a decision that it had breached its duty of care owed to the Claimant when she had fallen crossing a grass verge outside her house due an averred hole in the car. During the trial the judge considered a number of photographs of the verge taken at least 3 years after the accident which the Claimant suggested was similar to the size of the whole, albeit it was deeper at the time of the accident. The judge held she was a truthful witness and awarded her damages. The local authority appealed on the basis that the judge had made no clear findings on the nature and size of the hole, and that he had inferred that the hole was dangerous from the mere fact that the Claimant had fallen and that she had complained. The appeal was refused on the basis that the judge, in referring to evidence of the Claimant’s foot getting stuck and of her stepping into the hole seemed to accept that there was a hole and that it was large enough for an adult to step into. The judge had accepted the details of the Claimant’s account as an honest witness even though he had not expressly found that the hole was deep enough to be able to get stuck in and had not made any findings about the hole’s dimensions.

A single judge sitting in the High Court did have jurisdiction to make a committal order for an alleged contempt of court in proceedings commenced in the county court but subsequently transferred to the High Court

Tariq Ali v Esure Services Ltd [2011], EWCA Civ 1582, 19/12/11

The appellant, who had been the original Claimant appealed against a decision that a single judge sitting in the High Court had jurisdiction to hear an application by the respondent Insurer for his committal for alleged contempt of court. The Insurer had filed and served a Defence alleging fraud, at which point the Claimant had filed a notice of discontinuance. The Insurer issued an application to set aside the notice of discontinuance and transfer proceedings to the High Court. The Appellant submitted that the alleged contempt was made in connection with proceedings in the county court and therefore an order of committal could only be made by a Divisional Court and a single judge of the High Court had no jurisdiction. The Court held that Order 52 r.1(3) applied to “any proceedings in the High Court” and those words were wide enough to cover proceedings that were not started in the High Court, but were transferred to it from the county court. The proceedings in the High Court were the very same proceedings that were in the county court. On the transfer to the High Court the proceedings “in connection with” which the alleged contempt was committed did not become a different set of proceedings separate from those that were in the county court. The decision in Brighton and Hove Bus and Coach Co Ltd v Brooks (2011) EWHC 806 (Admin) that only the Divisional Court had jurisdiction where contempt was alleged in proceedings that had been transferred from the county court to the High Court was disapproved.

A hospital trust, having admitted a breach of its duty of care in a clinical negligence claim, was granted summary judgment on outstanding issues which had no realistic prospect of success
Wright v Basildon and Thurrock Hospital NHS Trust (2011), QBD, 07/12/11

The applicant trust applied for summary judgment on the outstanding issues in a clinical negligence claim brought by the respondent. Judgment by consent was entered in relation to a discrete issue with damages to be assessed. However, the Claimant raised further serious allegations which the trust denied. The Claimant had sought to rely on a report of a consultant surgeon (T) in circumstances where T had withdrawn from acting for him and had indicated his unwillingness to testify on his behalf. The Claimant currently stood debarred from relying on all expert evidence. The Claimant sought an adjournment to allow for the appointment of a fresh expert and provided a letter from a prospective expert who stated he had seen the Claimant and was willing to act as his witness. It was held that the fresh expert’s letter said nothing in relation to his opinion of the Claimant’s case or his availability to give evidence at trial. It was held it was far too late to make such an application in circumstances where the trial was to take place in three days’ time. The only possible evidence to support the Claimant’s allegations of clinical negligence was T’s report. Even if T’s written evidence were to be placed before a trial judge, the court found with regret but no hesitation, that the Claimant’s case had no real prospect of success.

February 1, 2012 · Editorial Team · Comments Closed
Posted in: Cases